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Bowers v. Hardwick

Citation. 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986)
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Brief Fact Summary.

A male homosexual was criminally charged for committing consensual sodomy with another male adult in the bedroom of his home.

Synopsis of Rule of Law.

There is no constitutional right to engage in consensual homosexual sodomy.


The Respondent, Hardwick (Respondent), brought suit in a federal district court challenging the constitutionality of a Georgia statute insofar as it criminalized consensual sodomy. The Respondent asserted that he was a practicing homosexual, that the Georgia statute placed him in imminent danger of arrest and that the statute violated his constitutional rights. The District Court granted a motion to dismiss the case for failure to state a claim. The Eleventh Circuit reversed the decision ruling that the statute violated the Respondent’s “fundamental rights because his homosexual activity was a private and intimate association . . . .” The Eleventh Circuit remanded the decision for trial ruling that the Georgia statute must pass strict scrutiny before it can be upheld.


Whether the act of consensual homosexual sodomy is protected under the fundamental right to privacy.


Justice Byron White (J. White). No. The act of consensual sodomy is not protected under the fundamental right to privacy or any right protected under the United States Constitution (Constitution). There is no precedent to support the Respondent’s claimed constitutional right to commit sodomy. Fundamental liberty interests recognized by the Supreme Court of the United States (Supreme Court) throughout history and through its traditions have in no way set any foundation to include a case such as this under the Constitutional umbrella of protection. “The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. . . . There should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental.” The judgment of the Eleventh Circuit is reversed.


The dissenting opinions are as follows:
Justice Harry Blackmun (J. Blackmun). “[T]he right of an individual to conduct intimate relationships in the intimacy of his or her own home [as seen in this case] seems . . . to be the heart of the Constitution’s protection of privacy.”
Justice John Paul Stevens (J. Stevens). “The Court orders the dismissal of respondent’s complaint even though the State’s statute prohibits all sodomy; even though that prohibition is concededly unconstitutional with respect to heterosexuals; and even though the State’s post hoc explanations for selective application are belied by the State’s own actions. At the very least, . . . it [is] clear at this early stage of the litigation that respondent has alleged a constitutional claim sufficient to withstand a motion to dismiss.”
Concurrence. The concurring opinions are as follows:
Chief Justice Warren Burger (J. Burger). “I find nothing in the Constitution depriving a State of the power to enact the statute challenged here.”
Justice Lewis Powell (J. Powell). Even though the Respondent has no fundamental right to engage in consensual sodomy, he may “be protected by the Eight Amendment of the Constitution” because the Respondent may be imprisoned for his homosexual acts “for up to 20 years for a single private, consensual act of sodomy.”


The Supreme Court does not link this case with other right to privacy cases because even though consensual homosexual sodomy may be committed within the privacy of ones home, “[p]roscriptions against that conduct have ancient roots. . . . Sodomy was a criminal offense at common law and was forbidden by the laws of the original thirteen States when they ratified the Bill of Rights.” Also, the Supreme Court states that sodomy is not immune from being criminalized because it may occur in the home. The Supreme Court has held other acts that may take place within the home, such as illegal possession and/or use of drugs, as criminal.

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